SLAPPing Around the First Amendment: An Analysis of Oklahoma s Anti-SLAPP Statute and Its Implications on the Right to Petition

Transcription

1 Oklahoma Law Review Volume 60 Number SLAPPing Around the First Amendment: An Analysis of Oklahoma s Anti-SLAPP Statute and Its Implications on the Right to Petition Laura Long Follow this and additional works at: Part of the Contracts Commons, First Amendment Commons, and the Torts Commons Recommended Citation Laura Long, SLAPPing Around the First Amendment: An Analysis of Oklahoma s Anti-SLAPP Statute and Its Implications on the Right to Petition, 60 Okla. L. Rev. 421 (2017), This Note is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in Oklahoma Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact darinfox@ou.edu.

2 SLAPPing Around the First Amendment: An Analysis of Oklahoma s Anti-SLAPP Statute and Its Implications on the Right to Petition [F]ree speech, free press, free religion, the right of free assembly, yes, the right of petition... well, they are still radical ideas. 1 I. Introduction Lyndon B. Johnson Many states are beginning to take note of a troubling trend in litigation that devastates First Amendment rights. This litigation, termed Strategic Lawsuits Against Public Participation (SLAPP suits), 2 consists of lawsuits filed against individuals who communicate with or try to influence the government. 3 SLAPP suits differ from ordinary contract and tort lawsuits in that they are simply a reaction to political action. 4 They dissuade public activism such as testifying against real estate development at a zoning hearing, 5 complaining to a school board about unfit teachers, 6 or demonstrating peacefully for or against government actions. 7 While the First Amendment guarantees citizens the right to petition their government for redress of grievances, SLAPP suits effectively chill petitioning activities by subjecting citizens who exercise their right to the fear and intimidation of litigation. 8 As a result, many states are responding by enacting some form of judicial or legislative remedy to combat these suits. 1. Lyndon B. Johnson, Remarks to the International Platform Association Upon Receiving the Association s Annual Award (Aug. 3, 1965). 2. Professors Pring and Canan of the University of Denver are two of the primary analysts of this legal phenomenon. They coined the term SLAPP and initiated a detailed analysis of the SLAPP trend. GEORGE W. PRING & PENELOPE CANAN, SLAPPS: GETTING SUED FOR SPEAKING OUT 3 (1996). 3. Penelope Canan & George W. Pring, Studying Strategic Lawsuits Against Public Participation: Mixing Quantitative and Qualitative Approaches, 22 LAW & SOC Y REV. 385, 386 (1988). 4. PRING & CANAN, supra note 2, at 8; see also Duracraft Corp. v. Holmes Prod. Corp., 691 N.E.2d 935, 940 (Mass. 1998). 5. See Gorman Towers v. Bogoslavsky, 626 F.2d 607 (8th Cir. 1980); Weiss v. Willow Tree Civic Ass n, 467 F. Supp. 803 (S.D.N.Y. 1979). 6. See Martin v. Kearney, 124 Cal. Rptr. 281 (Cal. Ct. App. 1975); Weissman v. Mogol, 462 N.Y.S.2d 383 (N.Y. Sup. Ct. 1983). 7. See County of San Luis Obispo v. Abalone Alliance, 223 Cal. Rptr. 846 (Cal. Ct. App. 1986); N. Star Legal Found. v. Honeywell Project, 355 N.W.2d 186 (Minn. Ct. App. 1984). 8. U.S. CONST. amend. I ( Congress shall make no law... abridging... the right of the people... to petition the Government for a redress of grievances. ). 421 Published by University of Oklahoma College of Law Digital Commons, 2017

3 422 OKLAHOMA LAW REVIEW [Vol. 60:421 The defining characteristic of a SLAPP suit is its purpose to deter public participation in decision-making forums. Accordingly, SLAPP suits encompass many forms of litigation, including both direct lawsuits and counterclaims or cross-claims to existing lawsuits. 9 For example, a counterclaim alleging defamation might arise in an unfair business practice suit. If the purpose of the counterclaim is to make the original plaintiff withdraw the suit, then the counterclaim is a SLAPP suit. 10 Due to the many forms a SLAPP suit may take, scholars and litigators often refer to those involved in SLAPP suits as filers and targets instead of plaintiffs and defendants. 11 Generally, filers of SLAPP suits are well-financed organizations, and targets are private citizens or groups whose political activism may be detrimental to the organization's business interests. 12 Because SLAPP suit filers must camouflage their grievances against the targets petitioning activities, five recognized causes of action are typically used for SLAPP suit litigation: defamation, business torts, process violations, conspiracy, and constitutional and civil rights violations. 13 Other less common causes of action may include violations such as nuisance, trespass, and emotional harms. 14 A nationwide study of SLAPP suit litigation identified defamation in the form of libel, slander, and business libel as the most common cause of action. 15 Business torts, the second most common cause of action, include interference with contract or business, antitrust, restraint of trade, and unfair competition. 16 Courts typically dismiss most SLAPP suits because of their infringements on the First Amendment Right to Petition; 17 however, the primary objective of SLAPP suits is not to win. Instead of achieving victory in court, SLAPP suits are designed to intimidate the petitioners into dropping their initial petitions due to the expense and fear of extended litigation. 18 While legitimate litigation 9. PRING & CANAN, supra note 2, at Simmons v. Allstate Ins. Co., 112 Cal. Rptr. 2d 397, 398 (Cal. Ct. App. 2001). 11. PRING & CANAN, supra note 2, at Victor J. Cosentino, Strategic Lawsuits Against Public Participation: An Analysis of the Solutions, 27 CAL. W. L. REV. 399, 402 (1991). Real estate developers, property owners, police officers, public utility companies, and state and local governments frequently file SLAPP suits. Canan & Pring, supra note 3, at PRING & CANAN, supra note 2, at Id. 15. Id. 16. Id. 17. U.S. CONST. amend. I. 18. See United States v. Lockheed Missiles & Space Co., 190 F.3d 963, (9th Cir. 1999); Wilcox v. Superior Court, 33 Cal. Rptr. 2d 446, 450 (Cal. Ct. App. 1994), overruled on other grounds by Equilon Enters. v. Consumer Cause, 52 P.3d 685 (Cal. 2002).

4 2007] NOTE 423 serves to obtain compensation or to right a wrong, the primary motivation behind filing SLAPP suits is to retaliate against successful opposition and prevent future opposition. 19 It has been noted that, One would be hardpressed to find another area of law in which so overwhelming a proportion of defendants brought into court are eventually vindicated. 20 Nevertheless, despite a victory in court, the targets of SLAPP suits must hire lawyers, spend time answering complaints, and deal with burdensome discovery requests. In addition, an overwhelming number of petitioners drop their original petition. 21 Thus, filers achieve success through the withdrawal of the targets petitions, or, when the cases have already been resolved in a manner detrimental to the filers, success comes in the form of a chill on future petitioning. 22 The presence of these ulterior motives confounds established litigation procedures and safeguards, such as fines, sanctions, and unfavorable decisions designed to prevent abuse and manipulation of the legal system. 23 Because filers of SLAPP suits look to intimidate the targets rather than win the lawsuits, unfavorable decisions do little to control or prevent filers from suing the petitioners. 24 Often filers are trying to protect large business deals from the targets blocking strategies. 25 If the business incentives outweigh the sanctions for filing frivolous lawsuits, then fines will do little to discourage filing SLAPP suits. Thus, absent additional legislation specifically directed toward SLAPP suits, abuse and manipulation of the legal system will continue unconstrained. Although SLAPP suits are by no means a new phenomenon in business and political litigation, states have only recently begun to enact legislation geared at defining and dealing with SLAPP suits. 26 California has spearheaded the effort with some of the most comprehensive legislation and case law. 27 Based 19. Penelope Canan, The SLAPP from a Sociological Perspective, 7 PACE ENVTL. L. REV. 23, 30 (1989) (describing filers primary motives as: (1) the intent to retaliate for successful opposition on an issue of public interest; (2) the attempt to prevent expected future, competent opposition on subsequent public policy issues; (3) the intent to intimidate and, generally, to send a message that opposition will be punished; and (4) a view of litigation and the use of the court system as simply another tool in a strategy to win a political and/or economic battle ). 20. Edmond Costantini & Mary Paul Nash, SLAPP/SLAPPBACK: The Misuse of Libel Law for Political Purposes and a Countersuit Response, 7 J.L. & POL. 417, 420 (1991). 21. Lori Potter, Strategic Lawsuits Against Public Participation and Petition Clause Immunity, 31 ENVTL. L. REP. 10,852, 10,853 (2001); PRING & CANAN, supra note 2, at Cosentino, supra note 12, at Id. 24. Id. 25. Id. at PRING & CANAN, supra note 2, at 189 (noting these types of laws are often referred to as anti-slapp laws). 27. CAL. CIV. PROC. CODE (West 2006); see also California Anti-SLAPP Project, Published by University of Oklahoma College of Law Digital Commons, 2017

5 424 OKLAHOMA LAW REVIEW [Vol. 60:421 on California s lead, twenty-three other states have enacted legislation with varying degrees of protection for SLAPP suit targets. 28 Some states, like Oklahoma, limit the statute s application to a specific cause of action, such as defamation, and do not provide procedural shortcuts for handling suits. 29 Other states provide more comprehensive procedural mechanisms to effectively deal with SLAPP suits such as special motions to dismiss, procedures to stay discovery, and the shifting of attorney fees, without restricting the cause of action. 30 Because of the potentially devastating chill effect SLAPP suits have on the constitutional right to petition the government, state legislative action is required to combat their ill effects. Legislation should articulate a clear definition of SLAPP suits and provide a remedy for quick and easy disposal of such suits so that citizens feel free to campaign against ballot issues, demonstrate peacefully, file complaints to government offices, and report official misconduct. 31 Although an increasing number of states are recognizing the need for such legislation, Oklahoma s anti-slapp statute remains ineffective and continues to lack the elements necessary to successfully combat SLAPP suits. This note analyzes how the limited scope of Oklahoma s anti-slapp statute hinders the First Amendment Right to Petition by not providing SLAPP suit targets proper procedural shortcuts to easily dispose of improper suits. Part II of this note examines how the Supreme Court and other states have addressed SLAPP suits through an expansive reading of the Noerr-Pennington (last visited Feb. 12, 2007). 28. ARK. CODE ANN to -508 (2006); DEL. CODE ANN. tit. 10, (2001); FLA. STAT (2005); GA. CODE ANN (2003); HAW. REV. STAT. 634F (2005); IND. CODE to -10 (1998); LA. CODE CIV. PROC. ANN. art. 971 (2000); ME. REV. STAT. ANN. tit. 14, 556 (2003); MD. CODE ANN., CTS. & JUD. PROC (LexisNexis Supp. 2006); MASS. GEN. LAWS ch. 231, 59H (2000); MINN. STAT to -.05 (2000); MO. REV. STAT (Supp. 2006); NEB. REV. STAT to -246 (1995); NEV. REV. STAT to (2005); N.M. STAT to -9.2 (Supp. 2006); N.Y. C.P.L.R. 3211(g) (McKinney 2004); 12 OKLA. STAT (2001); OR. REV. STAT to.155 (2005); 27 PA. CONS. STAT. 7707, (2000); R.I. GEN. LAWS to -4 (1997); TENN. CODE ANN to (2005); UTAH CODE ANN to -105 (2003); WASH. REV. CODE to.520 (2005) OKLA. STAT ; see also DEL. CODE ANN. 8136(1) (limiting their protection to applicants for public permits); FLA. STAT (2) (limiting the prohibition of SLAPP suits to those filed by governmental entities); 27 PA. CONS. STAT. 7707, (limiting immunity to those petitioning for environmental causes). 30. See, e.g., CAL. CIV. PROC. CODE ; GA. CODE ANN ; HAW. REV. STAT. 634F; MASS. GEN. LAWS ch. 231, 59H; MO. REV. STAT ; R.I. GEN. LAWS to See generally PRING & CANAN, supra note 2, at 2.

6 2007] NOTE 425 Doctrine and through individual state statutes. Part III examines how Oklahoma has addressed SLAPP suits through its statute and case law. Part IV analyzes the weaknesses of Oklahoma s statute and suggests that Oklahoma adopt a more expansive recognition of SLAPP suits by not limiting them to defamation causes of action. In addition, Part IV includes suggested procedures for SLAPP suits such as a special motion to dismiss, a stay of discovery upon the filing of a motion to strike, shifting attorney fees, and an authorization for SLAPP-back suits. This note concludes in Part V. II. Guarding the First Amendment: Development of Petition Clause Immunity and SLAPP Suit Protection For the first two centuries after the enactment of the First Amendment, defendants rarely used the Petition Clause as a litigation defense. 32 Not until the early 1960s did the Supreme Court officially recognize petition clause immunity in limited situations. 33 The Supreme Court created this immunity, often called the Noerr-Pennington Doctrine (the Doctrine), when it held that an antitrust exemption exists for activities involving the petitioning of governmental bodies. 34 Eventually, the applicability of the Doctrine spread beyond the antitrust arena and became a defense to a wide variety of suits. 35 Nevertheless, although the Doctrine provides a defense to cases in which the plaintiff sues the defendant for petitioning, the Doctrine does little to discourage plaintiffs from filing such suits in the first place. States are therefore working to fill this void and discourage the suits through judicial remedies and, more commonly, state statutes. A. Supreme Court Development of the Noerr-Pennington Doctrine The Noerr-Pennington Doctrine states that the Constitution s Petition Clause protects efforts to influence the government through petitioning, even 32. Id. at 18; see, e.g., White v. Nicholls, 44 U.S. (3 How.) 266 (1845) (stating that a citizen was sued for complaining to the U.S. President about malfeasance by a customs collector); Gray v. Pentland, 2 Serg. & Rawle 23 (Penn. 1815) (stating that a citizen was sued for a deposition to the governor charging a government official with frequent intoxication and being unfit to perform duties of office with dignity); Larkin v. Noonan, 19 Wis. 82 (1865) (stating that a citizen was sued for reporting to the governor that a sheriff tried to defraud the county). 33. Potter, supra note 21, at 10, Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, (1972); United Mine Workers v. Pennington, 381 U.S. 657, 669 (1965); E. R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127, 136 (1961). 35. Prof l Real Estate Investors v. Columbia Pictures Indus., 508 U.S. 49, 59 (1993); NAACP v. Claiborne Hardware Co., 458 U.S. 886, (1982). Published by University of Oklahoma College of Law Digital Commons, 2017

7 426 OKLAHOMA LAW REVIEW [Vol. 60:421 if the petitioning is for an anticompetitive purpose. 36 While normal antitrust law prohibits business practices that may create unfair competition, the First Amendment Right to Petition the Government prevents lawsuits against certain business practices if the business practice is some sort of petitioning activity. 37 If a company asks a court or government official to enact a law that would ultimately stifle its competition, it is not violating antitrust laws because the First Amendment protects asking the government as a form of petitioning. 38 Even if the motive of the petition is to stifle competition, the right to petition outweighs the policy of promoting fair and equal business practices. 39 The Supreme Court articulated the principles for a Petition Clause defense and thereby established the Noerr-Pennington Doctrine in a series of three related cases. 40 In Eastern Railroad Presidents Conference v. Noerr Motor Freight, a trucking company sued to stop a railroad s publicity campaign aimed at obtaining federal legislative action against the interest of trucking companies. 41 The Supreme Court held that this attempt did not violate the Sherman Antitrust Act even if the objective of obtaining government action was for an anticompetitive purpose. 42 The Court viewed this publicity campaign as a petition to the legislature, and held that a law discouraging anticompetitive activity could not hinder the right to petition. 43 In United Mine Workers of America v. Pennington, the Supreme Court further utilized the Doctrine and expanded it to protect petitioning the executive branch. In Pennington, a union approached the Secretary of Labor seeking inclusion in an act that would establish a minimum wage law, making it hard for small companies to compete in the long-distance freight transportation market. 44 A small coalmine operator sued the union for violating the Antitrust Act. 45 As in Noerr Motor Freight, the Court held that petitioning the executive for the enforcement of laws did not violate the 36. Cal. Motor Transp., 404 U.S. at ; Pennington, 381 U.S. at 669; Noerr Motor Freight, 365 U.S. at Noerr Motor Freight, 365 U.S. at Cal. Motor Transp., 404 U.S. at Cal. Motor Transp., 404 U.S. at ; Pennington, 381 U.S. at 669; Noerr Motor Freight, 365 U.S. at Cal. Motor Transp., 404 U.S. 509; Pennington, 381 U.S. 657; Noerr Motor Freight, 365 U.S U.S. at Id. 43. Id U.S. at Id.

8 2007] NOTE 427 Antitrust Act. 46 The Court upheld the right to petition despite the fact that the union s ultimate objective of the petition was to diminish competition. 47 Finally, in California Motor Transport Co. v. Trucking Unlimited, the Court once again extended the Noerr-Pennington Doctrine to apply to petitions for relief before a court or administrative agency. In California Motor Transport, a trucking company sought damages and injunctive relief in a lawsuit against another trucking company. 48 Although the trucking company s lawsuit may have acted to stifle competition, the Court recognized that the lawsuit was a form of petitioning and the trucking company that filed the initial suit for damages and injunctive relief was immune from a retaliatory suit based on the First Amendment s right to petition as well as the right of free association. 49 Together, these three cases establish that the right to petition the government may not be undermined even if the purpose of the petition is to stifle competition. B. Expansion of the Noerr-Pennington Doctrine Beyond the Antitrust Arena The Noerr-Pennington line of cases solely addresses antitrust litigation, but the Supreme Court has acknowledged that the Doctrine has broader application. 50 For example, in NAACP v. Claiborne Hardware Co., the Court applied the Doctrine to civil rights cases. 51 In Claiborne Hardware, a boycott seen as a legitimate form of petitioning activity did not seek to destroy competition; rather, the purpose was to vindicate civil rights. 52 The Court stressed that the non-violent boycott aimed at protesting racial discrimination goes to the core of First Amendment values. 53 Applying the Noerr-Pennington Doctrine, the Court upheld the boycott as a legitimate form of petitioning activity. 54 Like in Noerr Motor Freight, the Court held that even if the foreseeable intent of the boycott is to impact economic activity, the boycott may not be undercut by laws regulating economic activity as long as the purpose is to influence state actors Id. at Id U.S. 508, 509 (1972). 49. Id. at See Prof l Real Estate Investors v. Columbia Pictures Indus., 508 U.S. 49, 59 (1993) ( Whether applying Noerr as an antitrust doctrine or invoking it in other contexts, we have repeatedly reaffirmed that evidence of anticompetitive intent or purpose alone cannot transform otherwise legitimate activity into a sham. ) U.S. 886, (1982). 52. Id. at Id. at Id. 55. Id. at 914. Published by University of Oklahoma College of Law Digital Commons, 2017

9 428 OKLAHOMA LAW REVIEW [Vol. 60:421 Expanding the Supreme Court s broad recognition of the Doctrine, lower courts have applied the Doctrine to a wide variety of petitioning activities. Several lower courts have held that those who petition the government seeking redress should not, in turn, be subjected to retaliatory litigation, whether the petition involves antitrust issues or not. 56 For example, in Ludwig v. Superior Court, the California Court of Appeals held that the Noerr-Pennington Doctrine applies to virtually any tort, including unfair competition and interference with contract, commercial speech, and to both competitive and anticompetitive activity. 57 In Alfred Weissman Real Estate v. Big V Supermarkets, Inc., the New York Supreme Court Appellate Division held that the Doctrine applies to claims brought under both federal and state law. 58 Thus, as applied by the Supreme Court and the lower courts, the Doctrine now applies to petitions in all areas of the government, including local governments, 59 and can provide immunity from suit in a variety of contexts. 60 C. Recognition of SLAPP Suits The Noerr-Pennington Doctrine establishes the foundation for recognizing petition clause immunity and provides a concrete defense for a wide variety of business and tort cases. 61 On the heels of the Noerr-Pennington line of cases, 56. See Reichenberger v. Pritchard, 660 F.2d 280, 288 (7th Cir. 1981); Edmondson & Gallagher v. Alban Towers Tenants Ass n, 829 F. Supp. 420, 426 (D.D.C. 1993), rev d on other grounds, 48 F.3d 1260 (D.C. Cir. 1995); Westfield Partners v. Hogan, 740 F. Supp. 523, 526 (N.D. Ill. 1990); Weiss v. Willow Tree Civic Ass n, 467 F. Supp. 803, (S.D.N.Y. 1979); Aknin v. Phillips, 404 F. Supp. 1150, 1153 (S.D.N.Y. 1975) Cal. Rptr. 2d 350, 360 n.17 (Cal. Ct. App. 1995); see also Zeller v. Consolini, 758 A.2d 376, 380 (Conn. App. Ct. 2000) (stating that the Noerr-Pennington Doctrine is equally applicable to many types of claims which seek to assign liability on the basis of the defendant's exercise of its first amendment rights ) N.Y.S.2d 647, 652 (N.Y. App. Div. 2000); see also Video Int l Prod. v. Warner- Amex Cable Commc ns, 858 F.2d 1075, 1084 (5th Cir. 1988); Hamilton v. Accu-Tek, 935 F. Supp. 1307, 1317 (E.D.N.Y. 1996). 59. Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, (1991) (granting Noerr- Pennington immunity for efforts to influence local government); Monarch Entm t Bureau v. N.J. Highway Auth., 715 F. Supp. 1290, (D.N.J. 1989); Zeller, 758 A.2d at See, e.g., Zeller, 758 A.2d at 384 (applying the Noerr-Pennington Doctrine to zoning permit challenges); Tremaine v. Tremaine, No S, 1997 WL , at *2 (Conn. Super. Ct. 1997) (holding that the Noerr-Pennington Doctrine applies to petitions for alimony and does not bar a husband s suit against his wife for damages and attorney fees for their divorce); Azzar v. Primebank, 499 N.W.2d 793, 796 (Mich. Ct. App. 1993) (applying the Noerr-Pennington Doctrine to a suit against a bank for an alleged breach of fiduciary duty); Pillar Corp. v. Enercon Indus. Corp., No , 1986 WL 22188, at *13 (Wis. Cir. Ct. 1986) (holding that the Noerr-Pennington Doctrine applies to suits to prevent an employee from disclosing potential trade secrets). 61. See Potter, supra note 21, at 10,853.

10 2007] NOTE 429 however, scholars and litigators noted that a growing caseload of defamation, business interference, and conspiracy torts shared a common feature they were filed as a tactical strategy to frustrate public law concerns by discouraging petitions to the government. 62 While petition clause immunity effectively prevented most of these suits from persevering in court, the fact that defendants were continually brought to court simply for filing petitions alerted scholars to the escalating trend of SLAPP suits. 63 SLAPP suit filers often successfully chill petitioning activity by transforming political petitions into legal causes of action. 64 Private citizens can influence the political arena without much risk or expense, but the judicial system erodes the balance of power between the parties and requires immense resources. 65 Petitioners must shift their focus away from the petitions and towards funding a legal defense, and lengthy delays in resolving the disputes cause support for the original petitions to decrease dramatically. 66 By using private tort litigation to shift petitions from the political arena to the legal forum, SLAPP suit plaintiffs increase the target s anxiety and risk, effectively chilling the right to petition. 67 Upon review of the detrimental chill effect of SLAPP suits and the fact that a favorable disposition amounts merely to a pyrrhic victory, Judge J. Nicholas Colabella of the New York Supreme Court stated, Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined. 68 Left unregulated, this chill effect not only stifles the petitioner s goal of obtaining public and governmental support for an issue, but also discourages other citizens from exercising their First Amendment rights for fear of similar suits. The Colorado Supreme Court s decision in Protect Our Mountain Environment v. District Court illuminates the need for SLAPP suit remedies and provides a framework to counteract the chill on the right to petition. 69 In Mountain Environment, an environmental group protested the development of a large residential-commercial center in an elk meadow in the mountains west of Denver. 70 The group testified in county hearings and filed an appeal against the county s approval in court. 71 In return, the development corporation filed 62. PRING & CANAN, supra note 2, at See generally id. 64. Cosentino, supra note 12, at Id. 66. Id. at Id. at Gordon v. Marrone, 590 N.Y.S.2d 649, 656 (N.Y. Sup. Ct. 1992) P.2d 1361 (Colo. 1984). 70. Id. at Id. at Published by University of Oklahoma College of Law Digital Commons, 2017

11 430 OKLAHOMA LAW REVIEW [Vol. 60:421 a $40,000,000 abuse of process and conspiracy suit against the group, its individual members, and its attorneys, arguing that the group s testimony and appeal injured the corporation. 72 The trial court denied dismissal and the group appealed based solely on the right to petition. 73 In a unanimous opinion, the court held that to overcome the motion to dismiss, the corporation had the burden of making a sufficient showing to permit the court to reasonably conclude that the [environmental group s] petitioning activities were not immunized from liability under the First Amendment. 74 Specifically, the court created three procedural requirements and three substantive requirements for managing SLAPP suits. 75 Procedurally, every motion to dismiss based on the Petition Clause is to be fast-tracked for summary judgment, the burden of proof is shifted from the petitioning group to the entity filing the SLAPP suit, and a heightened standard of review applies. Substantively, SLAPP suit filers must prove the petitioner s activity was devoid of reasonable factual support, had as its primary purpose harassment or some other improper objective, and did adversely affect a legal interest of the filer. 76 This decision has been cited as a model approach for early identification and disposition of SLAPP suits, and has been the basis for some state s anti-slapp laws. 77 D. A Legislative Approach to Handling SLAPP Suits Colorado s judicial doctrine and the Mountain Environment test establish a workable balance between protecting the target s constitutional petition rights and the filer s personal rights. 78 The court effectively removed barriers to early dismissal by establishing procedures for early identification, burdenshifting, and proof elements. 79 Despite Colorado s sound judicial basis for dealing with SLAPP suits, case law in other states does not offer a viable solution for SLAPP suits beyond a mere recognition that they exist. In 72. Id. at Id. 74. Id. at Id.; see also George W. Pring & Penelope Canan, Strategic Lawsuits Against Public Participation ( SLAPPs ): An Introduction for Bench, Bar and Bystanders, 12 BRIDGEPORT L. REV. 937, 951 (1992). 76. Protect Our Mountain Env t, 677 P.2d at See, e.g., DEL. CODE ANN. tit. 10, (2001); MASS. GEN. LAWS ch. 231, 59H (2000); NEB. REV. STAT to -246 (1995); TENN. CODE ANN to (2005); see also PRING & CANAN, supra note 2, at ; Robert Abrams, Strategic Lawsuits Against Public Participation (SLAPP), 7 PACE ENVTL. L. REV. 33, 42 (1989). 78. See Pring & Canan, supra note 75, at Id. at

12 2007] NOTE 431 response, many state legislatures have filled the procedural void that case law has yet to address. 80 In 1990, Washington became the first state to enact a statute that specifically dealt with SLAPP suits. 81 Within two years, California and New York followed Washington s lead and enacted legislation in response to their growing state SLAPP litigation. 82 Since the enactment of anti-slapp statutes in those three states, identification of SLAPP suits has intensified with many other states following suit. 83 To date, twenty-four states have enacted some sort of anti-slapp legislation since 1990, eight of those within the past five years. 84 In addition to the recent enactment of many state statutes, several states have already amended their current anti-slapp statutes to address loopholes and concerns identified in case law. 85 The legislative approach to dealing with SLAPP suits varies from state to state, but several core provisions are common to most state laws. 86 Professors Canan and Pring, premier SLAPP suit scholars, explain that, for a legislative approach to effectively protect public participation in the government, it must pass a three-part test. First, it must cover all public advocacy and 80. See ARK. CODE ANN to -508 (2006); DEL. CODE. ANN. tit. 10, ; FLA. STAT (2005); GA. CODE ANN (2003); HAW. REV. STAT. 634F (2005); IND. CODE to -10 (1998); LA. CODE CIV. PROC. ANN. art. 971 (2000); ME. REV. STAT. ANN. tit. 14, 556 (2003); MD. CODE ANN., CTS. & JUD. PROC (LexisNexis Supp. 2006); MASS. GEN. LAWS ch. 231, 59H; MINN. STAT to.05 (2000); MO. REV. STAT (Supp. 2006); NEB. REV. STAT to -246; NEV. REV. STAT to.670 (2005); N.M. STAT to -9.2 (Supp. 2006); N.Y. C.P.L.R. 3211(g) (McKinney 2004); OR. REV. STAT to.155 (2005); 27 PA. CONS. STAT. 7707, (2000); R.I. GEN. LAWS to -4 (1997); TENN. CODE ANN to -1003; UTAH CODE ANN to -105 (2003); WASH. REV. CODE to.520 (2005). 81. WASH. REV. CODE to.520. The statute was amended in 2002 to set forth clear dismissal rules. Id. 82. CAL. CIV. PROC. CODE (West 2006); N.Y. C.P.L.R. 3211(g) (establishing procedures for early dismissal and summary judgment in SLAPP cases). 83. For a listing of these states statutes, see supra note For a state-by-state examination of the anti-slapp statutes and amendments, see California Anti-SLAPP Project, supra note 27. The most recent legislation was enacted by Arkansas, Missouri, and Pennsylvania in 2005; Maryland in 2004; and Hawaii, New Mexico, Oregon, and Utah in See, e.g., CAL. CIV. PROC. CODE (amended to establish a sixty-day time limit for a motion to strike and to facilitate recovery of damages for SLAPP-back suits against filers); NEV. REV. STAT to.670 (amended to expand immunity to any person who engages in a good faith communication in furtherance of the right to petition); WASH. REV. CODE to.520 (amended to set forth clear rules for early dismissal review). 86. Potter, supra note 21, at 10,856. Published by University of Oklahoma College of Law Digital Commons, 2017

13 432 OKLAHOMA LAW REVIEW [Vol. 60:421 communications to government whether direct or indirect. 87 Second, it must address all government forums, whether federal, state, local, legislative, executive, judicial, or the electorate. 88 Finally, the legislation must set out some mode for prevention and cure, such as effective early review and burden shifting to filers. 89 Most statutes address these elements with provisions that articulate a process for motions to dismiss, allow for expedition of the hearings for such motions, limit discovery requests until the judge rules on the motions, and provide for shifting attorney s fees. 90 Other statutes, like Oklahoma s, establish a policy point of upholding petition clause immunity, but fail Canan and Pring s test by not covering all public advocacy or providing a mode for prevention and cure. 91 III. Relaxing the First Amendment: Oklahoma s Anti-SLAPP Statute and Interpretive Case Law Despite the growing legislative trend toward codifying procedural mechanisms to combat SLAPP suits, Oklahoma has yet to enact effective SLAPP suit legislation. The Oklahoma statute commonly referred to as the anti-slapp statute 92 was passed in 1981 and is markedly different from other states anti-slapp laws. 93 Passed nine years before the first SLAPP-specific 87. PRING & CANAN, supra note 2, at Id. 89. Id. 90. Potter, supra note 21, at 10,856; see also PRING & CANAN, supra note 2, at States that include a model approach for prevention and cure include California, New York, and Minnesota. CAL. CIV. PROC. CODE ; N.Y. C.P.L.R. 3211(g) (McKinney 2004); MINN. STAT to.05 (2000). 91. Oklahoma s statute fails part one of the test by only preventing libel actions and not addressing other common SLAPP suit claims such as business torts, civil rights, conspiracy, and malicious prosecution. 12 OKLA. STAT (2001). The statute also fails part three by not enacting any sort of cure or court review process. Id. Other states with inadequate provisions to cure SLAPP suits include Florida, Pennsylvania, and Tennessee. See FLA. STAT (2005); 27 PA. CONS. STAT. 7707, (2000); TENN. CODE ANN to (2005). 92. See, e.g., California Anti-SLAPP Project, supra note 27; Sheri Coover, Pennsylvania Anti-SLAPP Legislation, 12 PENN ST. ENVTL. L. REV. 263, 277 (2004); Potter, supra note 21, at 10, n.63; Frederick M. Rowe & Leo M. Romero, Resolving Land-Use Disputes by Intimidation: SLAPP Suits in New Mexico, 32 N.M. L. REV. 217, 217 n.2 (2002); Noah P. Peeters, Note, Don't Raise That Hand: Why, Under Georgia s Anti-SLAPP Statute, Whistleblowers Should Find Protection from Reprisals for Reporting Employer Misconduct, 38 GA. L. REV. 769, 782 n.96 (2004); Scot Wilson, Comment, Corporate Criticism on the Internet: The Fine Line Between Anonymous Speech and Cybersmear, 29 PEPP. L. REV. 533, 572 n.247 (2002) OKLA. STAT

14 2007] NOTE 433 statute, Oklahoma s law protects defendants from defamation suits but neither addresses nor protects against the more general phenomenon of SLAPP suits. 94 Nevertheless, while limiting the statute s applicability to defamation cases, Oklahoma courts liberally apply the terms in the statute in order to promote the First Amendment Right to Petition. A. Oklahoma s Statutory SLAPP Suit Protections Oklahoma s anti-slapp statute, section of title 12, provides immunity from libel suits upon certain conditions, but does not address other common SLAPP suit causes of action. 95 The statute states that, with the exception of falsely imputing a crime to a public officer, statements made in or about a legislative, judicial, or other proceeding authorized by law shall not be punishable as libel. 96 Further, the statute protects criticism of the official acts of public officers. 97 For a plaintiff to recover in a libel or defamation suit, the public official must show actual knowledge of probable falsity prior to the publication. 98 Short of a deliberate factual lie, a plaintiff may not sue a defendant for defamation even if there were serious doubts as to truth. 99 In addition to the immunity defense in section , other sections of the Oklahoma statute may also apply to SLAPP suit litigation. Oklahoma s statutes authorize a motion to dismiss for failure to state a claim, 100 and possible sanctions for filing frivolous lawsuits. 101 Further, section 2011 of title 12 allows judges to shift court costs and attorney fees. 102 Unfortunately, these sections, like section , are reactionary and do little to address the unique problems associated with SLAPP suits. While these sections provide at least 94. Id. 95. Id. 96. Id. 97. Id. Three Oklahoma cases have addressed the issue of what may be considered an act by a public official. Jurkowski v. Crawley, 1981 OK 110, 637 P.2d 56 (holding that an accusation about a police officer s misconduct at a prior job is protected because the accusations are relevant to the officer s fitness for office); Winters v. Morgan, 1978 OK 24, 576 P.2d 1152 (holding that statements falsely imputing a crime to an officer are not protected despite being about the officer s official duties); Wilson v. City of Tulsa, 2004 OK CIV APP 44, 91 P.3d 673 (holding that a press release alleging theft as a reason for a police officer s discharge was not defamatory and was not made through malice because it was made in the furtherance of the police chief s official duty). 98. Jurkowski, 10, 637 P.2d at 60; Wilson, 22, 91 P.3d at 680; see also N.Y. Times v. Sullivan, 376 U.S. 254, (1964); Gaylord Entm t Co. v. Thompson, 1998 OK 30, 19, 958 P.2d 128, Jurkowski, 1981 OK 110, 13, 637 P.2d at OKLA. STAT (2001) Id Id. Published by University of Oklahoma College of Law Digital Commons, 2017

15 434 OKLAHOMA LAW REVIEW [Vol. 60:421 some minimal remedy to targets of SLAPP suits, they are often burdensome for the target to pursue and do little to discourage filers from bringing SLAPP suits in the first place. 103 B. Judicial Interpretation SLAPP suit targets in Oklahoma often view the immunity defense in section as the easiest method to dispose of SLAPP suits. 104 Oklahoma courts recognize the importance of this immunity and have applied the statute generously. The Oklahoma judiciary has articulated a policy concern for protecting petitioning activities, 105 and has applied this policy by liberally defining the statutory requirements of section so that the immunity is available in a wide variety of situations. 1. Oklahoma s Policy Favoring Citizen Involvement in Public Affairs The Oklahoma Court of Civil Appeals has repeatedly noted that citizens should be allowed to question actions by public entities. For example, in White v. Basnett, a homeowner filed a complaint with the police department and the FBI alleging that a police officer was abusive. 106 In response, the police officer sued the homeowner for defamation. 107 The court found that the public policy of preventing citizens from being fearful of filing a legitimate complaint justified the citizen s absolute immunity from the defamation suit. 108 Similarly, the court in Burkett v. Tal addressed the public policy concerns of protecting communications made in a legislative or judicial proceeding. 109 In Burkett, a group of taxpayers filed a written demand with the city clerk of Oklahoma City alleging illegal appropriation of taxpayer funds for expenditures benefitting the private company, Bass Pro Outdoor World, L.L.C. 110 The city attorney of Oklahoma City sued the group of taxpayers for libel in response to their allegations. 111 The court held the allegations of illegal appropriation privileged under the statute because the written demand was a filing required by law. 112 Further, the court noted that the taxpayers deserved protection from a libel suit because the statute s purpose was to keep the 103. Cosentino, supra note 12, at OKLA. STAT White v. Basnett, 1985 OK CIV APP 10, 11, 700 P.2d 666, Id. at Id Id. at OK CIV APP 57, 10, 94 P.3d 114, Id. at Id. at Id. at

16 2007] NOTE 435 paths which lead to the ascertainment of truth... as free and unobstructed as possible. 113 The court in White and Burkett protected citizens from retaliatory defamation suits in order to encourage free speech and petitioning. Other decisions uphold that policy by broadly defining section Courts broadly construe the statute s requirement that statements be in or about judicial proceedings, and liberally define the statutory phrase, other proceedings authorized by law. 2. Oklahoma s Definition of Judicial Proceedings To encourage witnesses to speak freely without the fear of liability, Oklahoma courts liberally construe which statements are in a judicial proceeding, which proceedings are judicial, and which statements are about a judicial proceeding. 114 Oklahoma courts recognize that a statement may be in a judicial proceeding if made during or prior to a judicial proceeding, as long as the statement in some way relates to the proceeding. 115 Statements may be made in an affidavit, 116 a pleading, 117 a physician s report attached to a pleading, 118 and a divorce petition. 119 The courts also widely construe judicial proceeding by upholding the immunity in hearings before the University Board of Regents 120 and complaints made to a city police court. 121 Likewise, Oklahoma courts protect statements made about a judicial proceeding via public mediums such as television or newspapers. 122 For example, in Metcalf v. KFOR-TV, a physician sued a television station and reporter for statements made on television about pending lawsuits. 123 The district court held the station and reporter were immune from suit for 113. Id.; see Briscoe v. LaHue, 460 U.S. 325, (1983); Cooper v. Parker-Hughey, 1995 OK 35, 12, 894 P.2d 1096, Joplin v. Sw. Bell Tel. Co., 753 F.2d 808, 810 (10th Cir. 1983); State ex rel. Okla. Bar Ass n v. Dobbs, 2004 OK 46, 23, 94 P.3d 31, Kirschstein v. Haynes, 1990 OK 8, 12, 788 P.2d 941, 948; Hammett v. Hunter, 1941 OK 253, 7, 117 P.2d 511, Kirschstein, 21, 788 P.2d at Bennett v. McKibben, 1996 OK CIV APP 22, 915 P.2d Pac. Employers Ins. Co. v. Adams, 1946 OK 86, 168 P.2d Pryor v. Findley, 1997 OK CIV APP 74, 949 P.2d Sanford v. Howard, 1939 OK 343, 95 P.2d 644; Dickerson v. Crozier, 1927 OK 401, 261 P Dickerson, 1927 OK 401, 261 P Metcalf v. KFOR-TV, 828 F. Supp (W.D. Okla. 1992); McGhee v. Newspaper Holdings, 2005 OK CIV APP 41, 115 P.3d 896; see also Magnusson v. N.Y. Times Co., 2004 OK 53, 10, 98 P.3d 1070, F. Supp. at Published by University of Oklahoma College of Law Digital Commons, 2017

17 436 OKLAHOMA LAW REVIEW [Vol. 60:421 statements that jury selection had begun, that the physician had his license revoked, and comments regarding details in other lawsuits against the physician because they were fair and true reports of judicial and quasi-judicial proceedings Oklahoma s Definition of Other Proceedings Authorized by Law In addition to statements made in and about judicial proceedings, Oklahoma s statute protects fair and true reports of any legislative proceeding or other proceeding authorized by law. 125 The Oklahoma Supreme Court stated in Gaylord Entertainment Co. v. Thompson that political speech must be more jealously and intensely guarded than any other form of permissible expression. 126 To that end, Oklahoma courts recognize an expansive immunity for speech in contexts outside the judiciary, but relevant to the political process. Justice Brandeis stated in Whitney v. California, Those who won our independence believed that... the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. 127 In Gaylord, Justice Opala added, This, we might add, is a fundamental principle of the Oklahoma government as well. 128 To encourage political activity and public discussion, the Gaylord court applied section to protect political speech from retaliatory defamation suits before the targets even filed an initiative petition. 129 The protected speech occurred during the launch of an initiative drive, which, the court held, was an essential part of the political process designed ultimately to impact the government. 130 As with communication made in and about judicial proceedings, the court held that as long as there was a rational connection between the comment and the quest for political change, then the statute protected the communication. 131 In addition to speech intended to influence the legislature, section protects speech directed towards a variety of other government offices. In Metcalf v. KFOR-TV, the court not only addressed whether the statute protected statements made about a judicial proceeding, but also statements 124. Id. at OKLA. STAT (2001) OK 30, 17, 958 P.2d 128, U.S. 357, 375 (1927) (Brandeis, J., concurring) , 958 P.2d 128, 141 n Id Id. at 140 (emphasis omitted) Id.

18 2007] NOTE 437 about other proceedings authorized by law. 132 The district court held that the statute protected statements made on television and shown to the Oklahoma State Board of Medical Licensure and Supervision in a hearing for the physician to become board certified in cosmetic breast surgery. 133 The court stated that the board hearing was a proceeding authorized by law, and, thus, the statements were immune from suit. 134 Similarly, an Oklahoma district court upheld immunity for a statement made to the Oklahoma Employment Commission, 135 and the Oklahoma Court of Civil Appeals likewise protected statements made in a disciplinary proceeding before the Oklahoma State Board of Dentistry. 136 Although section limits protection of statements to defamation actions only, Oklahoma courts liberally construe the statute s applicability to ensure that any statement reasonably intended to have an effect on a political or judicial action receives that immunity. IV. SLAPPing Back: Analysis of Oklahoma s Statute and Call for Change Oklahoma s judiciary gives section strength by applying it to statements reasonably related to communication with a governmental body. Unfortunately, despite this expansive reading of the statute, targets of SLAPP suits still receive little protection in Oklahoma. Oklahoma s statute is ineffective because its narrow scope limits its applicability to a cause of action for libel, and it lacks an effective court review process. Like the Noerr- Pennington Doctrine, the Oklahoma statute merely provides a defense once the parties get to trial. Consequently, the targets of SLAPP suits must expend valuable time and resources getting to that point, which in itself is often enough to chill petitioning activity. Oklahoma s legislature should amend the statute to meet the three-part test suggested by scholars Canan and Pring. Further, the legislature should work to align the statute more closely with other states SLAPP suit remedies such as California s comprehensive anti-slapp legislation. A. Narrow Scope Regardless of how broad the Oklahoma judiciary defines the terms in section , the statute remains strictly limited to defamation cases. Defamation, however, is only one potential cause of action in which a SLAPP suit may appear. Oklahoma s statute fails the first prong of Canan and Pring s F. Supp. 1515, 1527 (W.D. Okla. 1992) Id Id Griffith v. Sw. Bell Tel. Co., 428 F. Supp. 284, 286 (W.D. Okla. 1976) Johnson v. KFOR, 2000 OK CIV APP 64, 3, 6 P.3d 1067, Published by University of Oklahoma College of Law Digital Commons, 2017

19 438 OKLAHOMA LAW REVIEW [Vol. 60:421 test because it does not cover all public advocacy and communications to the government. 137 The statute only applies if a SLAPP filer camouflages a claim using a defamation cause of action; SLAPP suits, however, frequently appear in other causes of action such as business torts, conspiracy, civil rights claims, abuse of process, and malicious prosecution. 138 As long as SLAPP suit filers avoid defamation and instead utilize one of the other common causes of action, SLAPP suit targets have little statutory protection against the harmful and often chilling attacks on the right to petition. To address the problems inherent in the statute s narrow scope, the Oklahoma legislature should consider updating the statute to conform to California and other states anti-slapp protections. A remarkable twentythree states, every state with an anti-slapp statute except Oklahoma, broadly cover any civil action 139 and an updated Oklahoma statute should similarly acknowledge SLAPP suits beyond the boundaries of libel. 140 An anti-slapp statute will only provide sufficient protection for targets of SLAPP suits by focusing on the actual attack on the right to petition, not the superficial cause of action PRING & CANAN, supra note 2, at Id. at While other states statutes are not restricted to a particular cause of action, some states do impose certain limitations. For example, Pennsylvania s statute only applies to petitions for environmental issues. 27 PA. CONS. STAT. 7707, (2000). Rhode Island specifies that the lawsuit must not be a sham. R.I. GEN. LAWS to -4 (1997). Arkansas, Delaware, Maine, Massachusetts, Pennsylvania, and Tennessee withhold immunity from statements that are made with knowledge of falsity. ARK. CODE ANN to -508 (2006); DEL. CODE ANN. tit. 10, (2001); ME. REV. STAT. ANN. tit. 14, 556 (2003); MASS. GEN. LAWS ch. 231, 59H (2000); 27 PA. CONS. STAT. 7707, ; TENN. CODE ANN to (2005). Arkansas and Nevada impose a good faith restriction. ARK. CODE ANN to -508; NEV. REV. STAT to.670 (2005). A good faith restriction is not recommended based on the Supreme Court s decision in Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (1991). See PRING & CANAN, supra note 2, at 193. That decision held that the Constitution protects any advocacy to government that is designed to have some effect on government decision-making, regardless of the content or motives. Columbia, 499 U.S. at See, e.g., PRING & CANAN, supra note 2, at 203. Professors Pring and Canan provide a sample provision made from using effective elements of the Supreme Court s Omni decision and California, New York, and Minnesota s statutes. Id. The sample provision states, in part, Acts in furtherance of the constitutional right to petition, including seeking relief, influencing action, informing, communicating, and otherwise participating in the process of government, shall be immune from civil liability, regardless of intent or purpose, except where not aimed at procuring any governmental or electoral action, result, or outcome. Id.